Local probationer grapples with new marijuana law

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For 15 years, medical marijuana has been legal in Colorado — but not for those on probation. The law has been tested at legal heights reaching the Colorado Court of Appeals. In the 2012 case People v. Watkins, the court ruled that offenses found to be illegal under federal law qualify as violations of probation. It also ruled that no Colorado law protects against prohibiting probationers from using pot — not even Amendment 20, which legalized medical use of marijuana in 2000.

That is no longer the case thanks House Bill 1267, which was championed by Rep. Joe Salazar, D-Thornton, during the recent legislative session and signed into law by Governor John Hickenlooper in May. The new law states that unless a defendant is sentenced to probation for a crime committed under the medical-marijuana statutes, or the probation office finds that "a prohibition against the possession or use of medical marijuana is necessary and appropriate to accomplish the goals of sentencing," then "the court shall not, as a condition of probation, prohibit the possession or use of medical marijuana."

In other words, unless convicted of an offense that falls under the medical-marijuana statutes, probationers are generally allowed to use pot for medical reasons.

Or so thought Maggie Williams.

The 50-year-old is at the start of a three-year supervised probationary period resulting from multiple "road rage" auto accidents caused while under the influence of alcohol. She also suffers from "autosomal recessive common variable immune deficiency," which she says makes her vulnerable to other conditions like debilitating nausea, fibromyalgia and osteoarthritis.

"And since I've gotten out of jail, I haven't been able to do any medical marijuana — it's all pills, and I'm not getting any relief," Williams tells the Independent.

"My arthritis is getting extreme," she adds. "I roll over in bed; I can hardly move. It wakes me up, the pain's so bad. And before, my arthritis was primarily just in my hands and my feet and at night I would rub [cannabis-infused] salve or cream on them and the next day, for pretty much most of the day, I'd be a lot better."

Williams went to her probation officer in May with the new law in mind. She says she was told she would need both a letter from "an actual doctor, not a dispensary doctor" and a court appearance before she would be allowed to treat with marijuana.

But that doesn't jibe with what Colorado Judicial Department spokesman Jon Sarché tells us about the new law.

"I can't say anything about the specifics of [Maggie Williams'] case other than to say we are looking into it and will rectify any problems we find," Sarché writes in an email. "In broad terms: The Judicial Department has developed a protocol for probation officers to follow regarding use of medical marijuana by probationers. The law allows a court to prohibit use of medical marijuana based on results of assessments the probation department uses to evaluate probationers. Until or unless a court issues such an order, any probationer may use medical marijuana."

On the other hand, the broad leeway offered to the government in the House bill means there's no guarantee of probationary access, says local defense attorney Clifton Black, who specializes in cannabis cases.

"The concern I have, and I don't know how this will play out, is any time a defendant enters into a plea agreement, they're basically entering into a contract between them and the district attorney's office," Black says. "So, for example, when somebody accepts a plea agreement, they're waiving their right to a jury trial, their right to see and hear witnesses against them. They're waiving their right to a speedy trial. So, there's a whole plethora of rights they're waiving that are constitutional rights.

"[El Paso County District Attorney Dan May] also has them waive some statutory stuff," continues Black. "So, for example, they're waiving their right to get evidence back. They're waiving their right to object to the destruction of that evidence. ... And what our district attorney is doing now, and they've done for several years, is they have defendants waive their right to use medical marijuana, act as a caregiver, or work at a medical marijuana center. And in some plea agreements they've even added recreational marijuana. So, it's going to be interesting, to say the least, how all this will play out in the courts." (May's office did not respond to a request for comment.)

Ultimately, Black is optimistic.

"What we're seeing, overall, is we're seeing society as a whole taking a much more in-depth look at marijuana and getting educated that it's not as harmful as other substances, that it does have medical benefit," he says. "So, I think it's a step in the right direction."

For now, it's unclear how helpful that step will be, but at least one person is benefitting. Last Friday, after multiple inquiries from the Indy, Williams' probation officer told her to bring in a copy of her medical-marijuana registration card.